Geoscience Policy Monthly Review
january 2018

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Senate passes bipartisan ocean monitoring and research act

January 8, 2018

On January 8, the Senate unanimously passed Senator Roger Wicker’s (R-MS) Coordinated Ocean Monitoring and Research Act (S.1425). The bipartisan bill revises and reauthorizes the Integrated Coastal and Ocean Observation System (ICOOS) Act of 2009 (33 USC 3601), which established the Integrated Ocean Observing System (IOOS) to consolidate and coordinate the efforts of hundreds of federal, state, and local observing programs through fiscal year (FY) 2021.

With the National Oceanic and Atmospheric Administration (NOAA) leading its implementation and administration, IOOS is a network of 17 federal and 11 regional entities that provide information about the nation's coasts, oceans, and Great Lakes, as well as new tools and forecasts to improve safety, enhance the economy, and protect the environment. IOOS collects data for defense, search and rescue, commerce, navigation, energy development, and other activities. Since establishment of the program, funding for IOOS has increased from $28.6 million in FY 2011 to $37.4 million in FY 2017. While the President’s FY 2018 Budget Request included $36.2 million for the program, the House and Senate Commerce, Justice, and Science Appropriations Bills for FY 2018 proposed increasing the program’s funding to $37.5 million (House) and $40.2 million (Senate). The Congressional Budget Office (CBO) estimates that implementing S.1425 would cost $71 million over the 2018-2022 period.

In addition to reauthorizing the ICOOS Act, S.1425 promotes best practices regarding data sharing for public use, investment in autonomous unmanned underwater and surface ocean research vehicles, closing gaps in high frequency radar, and assisting Coast Guard search and rescue operations. The legislation includes provisions for the Joint Subcommittee on Ocean Science and Technology, the National Science and Technology Council, and National Science Foundation to advance studies of ocean acidification and hypoxia.

Sources: Library of Congress; National Oceanic and Atmospheric Administration; U.S. House of Representatives; U.S. Senate; White House

Two-year delay to WOTUS applicability date finalized after the Supreme Court ruled that challenges belong in federal district courts

January 31, 2018

On January 22, the U.S. Supreme Court unanimously ruled that any challenges to the Waters of the United States (WOTUS) Rule must be filed in federal district courts, not federal courts of appeals. Since the WOTUS Rule was finalized in 2015, dozens of parties filed lawsuits in both federal district courts and appeals courts challenging the Obama-era regulation that expanded the definition of “waters of the United States” protected under the Clean Water Act. On October 9, 2015, the Sixth Circuit Court of Appeals stayed the WOTUS Rule nationwide, thus blocking the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) from using the new definition when enforcing the Clean Water Act. The Supreme Court jurisdictional ruling on the National Association of Manufacturers vs. Department of Defense (No. 16-299) now removes the nationwide stay from the Sixth Circuit Court, but the August 28, 2015, North Dakota federal district court’s injunction against implementation of the WOTUS Rule in 13 states remains in effect.

While the Supreme Court’s ruling would have permitted enforcement of the WOTUS Rule in 37 states, the EPA and USACE finalized a rule (82 FR 55542) on January 31 that creates a new applicability date for the WOTUS rule two years from now. Meanwhile, the agencies are in the process of overturning the rule to recodify the previous definition (82 FR 34899) and eventually write a replacement regulation, pursuant to President Donald Trump’s executive order on February 28, 2017. Changing the applicability date is a novel approach to delay regulation enforcement and will likely be challenged in court by environmental groups that argue the intention was to change the "effective date" of WOTUS. According to the Administrative Procedure Act, the effective date for a rule cannot be changed after the regulation takes effect – the WOTUS Rule already took effect in August 2015.  

Sources: Agri-Pulse; E&E News; Environmental Protection Agency; Federal Register; National Law Review; U.S. Court of Appeals for the Sixth Circuit; U.S. Supreme Court; White House